Tag: news

Ontario’s Employment Laws: Several Significant Changes Coming Under Bill 27, the Working for Workers Act, 2021

On November 30, 2021, the Government of Ontario passed Bill 27, the Working for Workers Act, 2021. Bill 27 amends a number of statutes, including the Employment Standards Act and the Occupational Health and Safety Act.

According to the government, this legislation achieves a number of goals, including improving employees’ work-life balance, prohibiting noncompete agreements to increase competition in business and labour markets, facilitating the registration of internationally trained professionals, and implementing a licensing regime for temporary help agencies and recruiters.

Amendments to the Employment Standards Act, 2000

Right to Disconnect from Work

The Working for Workers Act, 2021requires that employers with 25 or more employees at the beginning of the year implement a written “disconnect from work” policy regarding disconnecting from work during nonworking hours. Under the act, the term “disconnecting from work” is defined as “engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work.” Once an employer prepares or amends a policy, employers will have 30 days to share copies of this policy with employees. Employers must also provide new employees this policy within 30 days of being hired.

Once the act receives Royal Assent, employers will have six months from that date to develop their written policies. Following this initial year, employers will have to prepare their policies by no later than March 1 of each year.

The regulations that will be promulgated to establish the content of the policy have not yet been published. As such, it is not yet known what specific steps employers must take to prohibit after-hours work and whether they will be restricted in terms of which employees may or may not be permitted or required to perform after-hours work, in addition to other unsettled issues.

Prohibition of Noncompete Agreements

The act prohibits employers from including noncompete clauses in any agreement they form with an employee. If this provision is violated, the noncompete agreement will be void.

There are two exceptions to this rule.

  1. Employees in an executive role are excepted from this provision. An “executive” is an employee who holds the office of a chief executive position, including that of president, chief executive officer, and chief administrative officer.
  2. There is also an exception when there has been “a sale of a business or part of a business” (which includes a lease). If the purchaser and seller enter into a noncompete agreement, and the seller becomes an employee of the purchaser immediately after the sale, this prohibition will not apply.

Once Royal Assent is received, the noncompete prohibition is deemed to come into force on October 25, 2021.

With the passing the act, Ontario has become the first province to require “disconnect from work” policies and to prohibit noncompete agreements outright.

Licensing Requirements for Temporary Help Agencies

The act specifies that temporary help agencies and recruiters must now apply for a license. Anyone wishing to engage with a temporary help agency or recruiter must ensure that they are licensed, as knowingly doing business with an unlicensed agency or recruiter is prohibited under the act.

Temporary help agencies or recruiters may be refused a license and may have their licenses revoked or suspended for a number of reasons, including:

  • using recruiters that charge fees to foreign nationals;
  • providing “false or misleading information in an application”; and
  • situation in which the director of Employment Standards has reasonable grounds to believe that “the applicant will not carry on business with honesty and integrity and in accordance with the law.”

If applicants dispute the refusal, revocation, or suspension of their licenses, they can seek a review at the Ontario Labour Relations Board.

These amendments will come into force on a day to be proclaimed by the lieutenant governor.

Amendments to the Employment Protection for Foreign Nationals Act, 2009

Prohibition on the Collection of Recruitment Fees

To protect foreign nationals from predatory recruitment practices, the act prohibits employers and recruiters from knowingly using the services of recruiters that charge foreign nationals for their services.

A recruiter that charges a fee, and an employer or recruiter that violates this prohibition will be liable for repaying the fees charged to the foreign national.

These amendments will come into force on the day the Working for Workers Act, 2021 receives Royal Assent.

Amendments to the Fair Access to Regulated Professions And Compulsory Trades Act, 2006

Facilitating the Registration of Internationally Trained Professionals

To facilitate the registration of internationally trained professionals, the act specifies that Canadian experience will not be a qualification for registration in a regulated profession. Regulated professions may apply to be exempted from this rule “for the purposes of public health and safety in accordance with the regulations.” Regulated professions will also be required to develop accelerated registration processes to aid with emergency preparedness.

The fairness commissioner will also evaluate language proficiency requirements to ensure that any French or English testing does not contravene the regulations.

These amendments will come into force on the day the act receives Royal Assent.

Amendments to the Occupational Health and Safety Act

Mandating Washroom Access for Delivery Persons

Under the act, a new requirement is created that if a person requests washroom access in the course of delivering or picking up a package from a business. Business covered by the act must allow use of their washrooms.

Businesses will be exempt from this requirement if:

  • Sharing the washroom is unreasonable or impractical because of health and safety reasons;
  • The context makes sharing the washroom unreasonable or impractical; or
  • The delivery person would have to enter a dwelling to use the washroom.

These amendments will come into force on a day to be proclaimed by the lieutenant governor.

Amendments to the Workplace Safety and Insurance Act, 1997

Distribution of Surplus Insurance Fund

The act includes a provision that specifies that if there is a surplus in the Workplace Safety and Insurance Board’s insurance fund, this surplus may be distributed among eligible employers. The insurance board will have discretion to determine the timing and the amounts to be granted to eligible employers, based on factors such as adherence to the Workplace Safety and Insurance Act. Based on these factors, the insurance board will also be empowered to exclude any eligible employers from the distribution of surplus funds. Employers will not be able to appeal the funding decisions made by the insurance board in this respect.

These amendments will come into force on a day to be proclaimed by the lieutenant governor.

Amendments to the Ministry of Agriculture, Food and Rural Affairs Act

Increasing Information Gathering in Relation to “agriculture, food or rural affairs”

Under the act, the minister of Agriculture, Food and Rural Affairs is granted the authority to “collect information, including personal information, directly or indirectly” related to “agriculture, food or rural affairs” for the purposes of emergency response and public health. Personal information will not be collected, used, or disclosed in cases where other sources of information are available to fulfil the same purpose.

These amendments will come into force on the day the act receives Royal Assent.

Next Steps

Bill 27 passed its third reading on November 30, 2021. At the time of publication of this article, the legislation has not received Royal Assent, but it likely will shortly. Once Royal Assent is received, some amendments come into force immediately, while others follow different timelines. Employers may want to begin reviewing the new legislation, noting any important dates and features relevant to their organizations. In addition, employers may want to review their policies, practices, and contracts to ensure compliance.

Article By Michael Comartin and Gloria Ilunga of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more labor and employment legal news, click here to visit the National Law Review.
© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Same As It Ever Was: FDA Reiterates That CBD Cannot Be Included in Food or Dietary Supplements

While we enter a new season this week, the same cannot be said for the FDA which, on November 16, reiterated that its approach to regulating the cannabidiol (CBD) industry will be “the same as it ever was”—a regulatory minefield. Grail Sipes, acting Deputy Center Director for Regulatory Policy at the FDA’s Center for Drug Evaluation and Research, emphasized the agency’s position that it needs additional CBD research and safety data before the agency will consider CBD for uses beyond prescription drugs, including usage as a food additive or dietary supplement. This, she said, is because “clear answers to many important questions are still lacking, such as what adverse reactions may be associated with CBD from hemp-derived products and what risks are associated with the long term use of these products.”

So why should industry stakeholders care about the FDA’s opinion anyway? Wasn’t hemp-derived CBD legalized at the federal level by the Agriculture Improvement Act of 2018, also known as the Farm Bill?

Yes, but as we discussed in a previous blog post, the FDA and FTC have overlapping enforcement authority over CBD marketing, with the FDA having primary authority over labeling. The FDA has previously issued guidance stating that CBD can be used as an ingredient in cosmetics so long as it does not cause the product to be “adulterated or misbranded.” However, a product containing CBD cannot be marketed as a drug absent FDA approval—a lengthy and costly process. Companies marketing CBD products must therefore ensure compliance with the FDA’s labeling requirements and guidance regarding CBD products.

The FDA has not been shy to issue warning letters to CBD companies that fail to heed the agency’s labeling requirements and guidance. Starting in April 2019, the FDA (together with the FTC) began issuing warning letters to companies marketing CBD products as treatments and cures for a variety of diseases and illnesses. Those agencies continued to issue warning letters for marketing and labeling violations throughout 2019, largely for improper health-based claims about CBD products (those letters are described in more detail here and here). The most recent iteration came in 2021 when the agencies issued two warning letters to companies selling over-the-counter (OTC) drugs for pain relief that contained CBD. Sipes made clear the FDA will continue to monitor the CBD marketplace and issue warning letters to companies making improper health claims in her November 16 comments.

Given these comments, we can expect the cat-and-mouse game between federal regulators and CBD companies that push the marketing envelope to continue. To mitigate the risk of falling within the FDA’s crosshairs, CBD companies must ensure compliance with the various state and federal regulations governing the labeling and advertising of their products. We provided several marketing dos and don’ts in a previous blog post. But given the FDA’s unchanging position, the biggest takeaway remains the same: don’t make claims that a CBD product “can prevent, treat, or cure” or a disease.

Article By Rachel L. Sodée and J. Hunter Robinson of Bradley Arant Boult Cummings LLP

For more news on biotech, food, and drug law, click here to visit the National Law Review.

© 2021 Bradley Arant Boult Cummings LLP

DOL Publishes Final Rule Implementing President Biden’s $15 Federal Contractor Minimum Wage Executive Order 14026

The Department of Labor (DOL) has published its Final Rule implementing President Biden’s April 27, 2021, Executive Order 14026 raising the minimum wage from $10.95 an hour to $15 an hour (with increases to be published annually). The new wage rate will take effect January 30, 2022, though as discussed below, the rate increases will not be applied to contracts automatically on that date.

The Final Rule is substantially similar to the DOL’s proposed Notice of Rulemaking issued in July 2021 and is more expansive in coverage than the current federal contractor minimum wage requirements in effect under former President Obama’s Executive Order 13658.

$15 Wage Rate Does Not Apply to All Federal Contractors, All Federal Contracts, or All Workers

Covered Contracts

The $15 wage rate will apply to workers on four specific types of federal contracts that are performed in the U.S. (including the District of Columbia, Puerto Rico, and certain U.S. territories):

  • Procurement contracts for construction covered by the Davis-Bacon Act (DBA), but not the Davis-Bacon Related Acts
  • Service Contract Act (SCA) covered contracts
  • Concessions contracts – meaning a contract under which the federal government grants a right to use federal property, including land or facilities, for furnishing services. The term “concessions contract” includes, but is not limited to, a contract the principal purpose of which is to furnish food, lodging, automobile fuel, souvenirs, newspaper stands, or recreational equipment, regardless of whether the services are of direct benefit to the government, its personnel, or the general public
  • Contracts related to federal property and the offering of services to the general public, federal employees, and their dependents

The Executive Order does not apply to contracts or other funding instruments, including:

  • Contracts for the manufacturing or furnishing of materials, supplies, articles, or equipment to the federal government
  • Grants
  • Contracts or agreements with Indian Tribes under the Indian Self-Determination and Education Assistance Act
  • Contracts excluded from coverage under the SCA or DBA and specifically excluded in the implementing regulations and
  • Other contracts specifically excluded (See NPRM Section 23.40)

Effective Date; Definition of “New” Contracts Expanded

The Final Rule specifies that the wage requirement will apply to new contracts and contract solicitations as of January 30, 2022. Despite the “new contract” limitation, the regulations, consistent with the language of the Biden Executive Order, strongly encourage federal agencies to require the $15 wage for all existing contracts and solicitations issued between the date of the Executive Order and the effective date of January 30, 2022.

Similarly, agencies are “strongly encouraged” to require the new wage where they have issued a solicitation before the effective date and entered into a new contract resulting from the solicitation within 60 days of such effective date.

Pursuant to the Final Rule, the new minimum wage will apply to new contracts; new contract-like instruments; new solicitations; extensions or renewals of existing contracts or contract-like instruments; and exercises of options on existing contracts or contract-like instruments on or after January 30, 2022.

Geographic Limitations Expanded

The Final Rule applies coverage to workers outside the 50 states and expands the definition of “United States” to include the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, Outer Continental Shelf lands as defined in the Outer Continental Shelf Lands Act, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands, Wake Island, and Johnston Island.

Workers Performing Work “On or In Connection With” a Covered Contract

Only workers who are non-exempt under the Fair Labor Standards Act and performing work on or in connection with a covered contract must be paid $15 per hour. The wage requirement applies only to hours worked on or in connection with a covered contract.

A worker performs “on” a contract if the worker directly performs the specific services called for by the contract. A worker performs “in connection with” a contract if the worker’s work activities are necessary to the performance of a contract but are not the specific services called for by the contract.

The Final Rule includes a “less-than-20% exception” for those workers who only perform work “in connection with” a covered contract, but do not perform any direct work on the contract. For workers who spend less than 20% of their hours in a workweek working indirectly in connection with a covered contract, the contractor need not pay the $15 wage for any hours for that workweek.

Tipped Employees

Under the Final Rule, DOL is phasing out lower wages and tip credits for tipped employees on covered contracts. Employers must pay tipped employees $10.50 per hour in 2022 and increase those wages incrementally, under a proposed formula in the NPRM. Beginning in 2024, tipped employees must receive the full federal contractor wage rate.

$15 Wage Contract Clause Requirements, Enforcement Obligations

The Final Rule provides that a Minimum Wage contract clause will appear in covered prime contracts, except that procurement contracts subject to the Federal Acquisition Regulation (FAR) will include an applicable FAR Clause (to be issued by the Federal Acquisition Regulation Council) providing notice of the wage requirement.

In addition, covered prime contractors and subcontractors must include the Contract Clause in covered subcontracts and, as will be in the applicable FAR Clause, procurement prime contractors and subcontractors will be required to include the FAR clause in covered subcontracts.

In addition, the Final Rule provides that contractors and subcontractors:

“… shall require, as a condition of payment, that the subcontractor include the minimum wage contract clause in any lower-tier subcontracts … [and] shall be responsible for the compliance by any subcontractor or lower-tier subcontractor with the Executive Order minimum wage requirements, whether or not the contract clause was included in the subcontract.”

The DOL will investigate complaints and enforce the requirements but under the Final Rule, contracting agencies may also enforce the minimum wage requirements and take actions including contract termination, suspension and debarment for violations.

Preparation for the $15 wage

To prepare, contractors and subcontractors of covered contracts should consider taking the following steps:

  • Review existing multi-year contracts with options or extensions that may be exercised on or after January 30, 2022, to plan for wage increases at the exercise of the option or extension, but also review any contract modifications to see if an agency is including the requirement early than required, as is allowed under the Final Rule
  • Identify job titles that typically perform work directly on covered contracts and those that perform indirect work above 20% in a workweek
  • Plan for wage increases for covered workers who are not already making $15 per hour
  • Determine impact on existing collective bargaining agreements particularly on SCA-covered contracts
  • Prepare for submission of price/equitable adjustments based on wage increases if allowed under the contract terms

Article By Leslie A. Stout-Tabackman of Jackson Lewis P.C.

For more labor and employment legal news, read more at the National Law Review.

Jackson Lewis P.C. © 2021

USCIS Announces Policy Changes for H-4, L-2, and E-1/E-2/E-3 Dependent EAD Workers

Since the publication of our November 12, 2021 alert, U.S. Citizenship and Immigration Services (USCIS) issued policy guidance following the November 10, 2021 settlement agreement and updated the I-9 Handbook providing for automatic extensions of Employment Authorization Document (EAD) cards for H-4, L-2, and E-1 Dependent, E-2 Dependent, or E-3 Dependent visa holders. The USCIS policy guidance can be found here.

As described in our previous alert, the Department of Homeland Security (DHS) entered into a settlement agreement following a lawsuit brought by H-4 and L-2 spouses suffering from long-delayed adjudication for the processing of applications for Employment Authorization Document (EAD) cards. Effective November 12, 2021, USCIS allows for automatic extensions of employment authorization, in certain circumstances, while an EAD renewal application has been filed and is pending with USCIS for H-4, L-2, and now E-1/E-2/E-3 dependent (“E dependent”) spouses. In addition, USCIS has now changed its statutory interpretation and will soon afford employment authorization incident to status for L-2 spouses, E-1 Treaty Trader dependent spouses, E-2 Investor dependent spouses, and E-3 specialty occupation professionals from Australia dependent spouses. Once this policy takes effect, L-2 and E dependent spouses will no longer need to apply for an EAD card in order to be authorized to work.

Automatic Extension of EADs for H-4, L-2, and E Dependent Spouses

USCIS has officially issued guidance and updated the I-9 Handbook to provide for automatic extensions of EADs for H-4 and L-2 spouses. In this new policy alert, USCIS is granting these benefits to spouses of E-1 Treaty Traders, E-2 Treaty Investors, and E-3 specialty occupation professionals from Australia in the respective E dependent classification as well.

H-4, L-2, and E dependent spouses will qualify for automatic extension of their valid EAD for 180 days beyond the date of the EAD expiration if the nonimmigrant spouse:

  • Properly files a Form I-765 EAD renewal application to USCIS before the current EAD expires; and
  • Continues to maintain H-4, L-2, or E dependent status beyond the expiration of the existing EAD as evidenced on Form I-94.

The validity of the expired EAD will be extended until the earliest of:

  • 180 days following the EAD expiration;
  • The expiration of the H-4 / L-2 / E dependent nonimmigrant’s I-94 record; or
  • When a final decision is made on the EAD extension application by USCIS.

For I-9 purposes, an H-4, L-2, or E dependent employee may present: a facially expired EAD indicating Category C26, A18, or A17; Form I-797, Notice of Action for Form I-765 with Class requested indicating (c)(26), (a)(18), or (a)(17) and showing that the I-765 EAD renewal application was filed before the EAD expired; and an unexpired I-94, showing valid H-4, L-2, or E dependent nonimmigrant status.

L-2 and E-1/E-2/E-3 Dependent Spouses Will Be Granted Work Authorization Pursuant to Status

USCIS’ new policy guidance provides that both L-2 and E dependent spouses will be employment authorized incident to status, meaning that a separate Form I-765 EAD application will not need to be filed to obtain work authorization, and that the L-2 or E dependent spouse is authorized to work upon being admitted to the United States. USCIS, in cooperation with CBP, will change Form I-94 to indicate the individual is an L-2 spouse so that the I-94 can be used for I-9 purposes. DHS will, within 120 days, take steps to modify Form I-94. However, please note that until USCIS can implement changes to the I-94 to distinguish L-2 and E dependent spouses currently in the U.S. from L-2 and E dependent children, E and L spouses will still need to rely upon an EAD as evidence of employment authorization to present to employers for completion of Form I-9.

Obtaining an Extended I-94

As it is required for H-4, L-2, and E-3 spouses to have a valid I-94 for the automatic extension of the EAD, we are outlining two possible ways that a person applying for an H-4 or L-2 EAD extension can obtain an extended I-94:

  1. File the H-1B or L-1 extension using premium processing and wait for the H-1B or L-1 approval. The H-4 or L-2 spouse then departs the U.S. and obtains a new visa and returns with an extended I-94. Once the spouse returns, he or she will file the EAD extension upon return to the U.S.
  2. File the H-4 or L-2 and EAD extensions with the principal’s H-1B or L-1 extension. After the H-1B or L-1 is approved, the spouse departs the U.S. and obtains a new visa and returns with an extended I-94. The Form I-539, request for extension of status, will be abandoned, but Form I-765 will not and will continue to be processed by USCIS.

Regarding E dependent spouses, anyone entering the U.S. with an E visa is admitted for two years, so he or she may already have an extended I-94 card. If an E dependent spouse has an expiring I-94, he or she can follow one of the above steps to extend their I-94.

Article By Angel Feng, Shannon N. Parker, and John F. Quill of Mintz.

For more immigration law news, read more at the National Law Review.

©1994-2021 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Happy New Year Begins with Legitimate, Transparent and Trustworthy Media

fake newsIt used to be that news traveled fast, but these days, thanks to technology and social networking, it’s more accurate to say that news travels at record speeds. A news story can literally go viral in seconds. Unfortunately, sometimes these stories are entirely false – and it took a highly contentious presidential election for much of America to realize the distressing and detrimental prevalence of fake news.

Sometimes fake news stories can be detected from a mile away, but sometimes they fool even the most perceptive of readers. As NPR notes here, “…the proliferation of fake news isn’t just the responsibility of the platforms used to spread it. Those who consume news also need to find ways of determining if what they’re reading is true.” What’s the primary indicator? An authentic news story originates from a reputable and substantiated news outlet.

As a marketing and/or legal professional, you must do your homework when a media opportunity arises. Similarly to recognizing bogus news stories, you need to use your best judgment to recognize when interview and byline opportunities are not worthwhile or authentic. Interviewing and writing require valuable time and effort, so you want to ensure that every endeavor will be time and effort well spent with a news organization that is authentic, trusted and relevant in your industry. Otherwise, results could be lackluster and even detrimental. As New Year’s resolutions and goals are being set, what better occasion than now to refresh our understanding of the fundamental indicators of quality, reliable and suitable media opportunities?

The next time you are presented with a media opportunity, spend a few moments conducting some simple due diligence. When an opportunity arises, both for my clients and myself, I examine the following to weigh its value:

  • Website: Reputable and established news organizations run websites that are professional in esthetic and content. They have recognizable domains. Their sites are navigable, attractive and well-organized. They feature up-to-date news items. Ultimately, you need to ask yourself whether you want your name, commentary or original thought leadership to appear on that organization’s page. If the answer is no, then it’s definitely better to pass and hold out for the next opportunity.

  • Media Kit: Media kits are truly a treasure trove of information. They provide details such as a publication’s history, circulation, page views, editorial calendar and – perhaps most importantly – the audience. Who and how many will be exposed to your efforts? If the audience is not ideal for your message, or if numbers appear low, then you should set your sights on a different and more valuable opportunity.

  • Editor or Journalist Background: You can tell a lot about a media professional just by examining his or her professional history and repertoire of work. The beauty of media is that everything is documented. Where did he or she come from? Does the interviewer have established credentials with respected publications? What is his or her writing style – snarky and negative, or sound and informative? What other types of sources do they tend to quote in articles? Reporters are trained to find the story, so if you open yourself up to an interview, you need to make sure that it’s a “story” with no negative repercussions for you, your practice or your firm. Don’t be afraid to ask questions about the angle or direction your interviewer plans to take for his or her piece.

  • Cost: My clients often ask us about pay-to-play media opportunities. Generally speaking, my agency advises against pay-to-play. While advertising most definitely has its place, I strongly encourage and believe in conventional editorial opportunities that are gained through traditional PR methods.

  • Social Media Feeds: Who and what are the organizations/journalists following on social media? As the old adage goes, you are the company you keep. Even digitally! Reputable outlets and media professionals subscribe to other professional feeds.

For 2017, I challenge you to embrace this resolution: Support, read, share and contribute nothing but quality, enriching and authentic news. You, your clients and your colleagues will all reap the benefits. Your time is just that: yours. Make sure it’s spent reading and investing in nothing but the best.

ARTICLE BY Bethany S. Early of Jaffe

© Copyright 2008-2016, Jaffe Associates